Appeals

Often when statutory authorities are given the power to make administrative decisions, the statute giving this power also provides for a right of appeal against that decision to a statutory body or to the administrative court.

See, for instance, Lowenthal v Liquor Licensing Board 1956 (1) SA 227 (SR) and Divaris v Liquor Licensing Board 1956 (3) SA 462 (SR)

Types of appeal

Where there is such a right of appeal the question arises as to what type of appeal is envisaged. In the case of Watchtower Bible and Tract Society of Pennsylvania & Anor v Drum Investments (Pvt) Ltd 1993 (2) ZLR 67 (S) the Supreme Court had this to say–

Traditionally the courts in Southern Africa have divided administrative appeals into three categories, as follows–

1. An appeal in the wide sense, that is, a complete re-hearing of, and fresh determination on the merits of the matter with or without additional evidence or information;
2. An appeal in the ordinary strict sense, that is, a re-hearing on the merits but limited to the evidence or information on which the decision under appeal was given, and in which the only determination is whether that decision was right or wrong;
3. A review, that is, a limited re-hearing with or without additional evidence or information, to determine, not whether the decision under appeal was correct or not, but whether the arbiters had exercised their powers and discretion honestly and properly.

This is the list set out by Trollip J .  .  . in Tickly & Ors v Johannes & Ors 1963 (2) SA 588 (T) at 590, adopted by the Appellate Division in S v Mohamed 1977 (2) SA 531 (A) at 538D-G, and applied in National Union of Textile Workers v Textile Workers’ Industrial Union (SA) & Ors 1988 (1) SA 925 (A) at 937.

In the Watchtower case a religious organisation applied for special consent from the Rural Council on land that was zoned for agricultural usage. Two persons living in the vicinity of the site objected to the application. The Rural Council granted special consent for a change of use. The objectors then appealed in terms of s 63 of the Administrative Court Act, 1979 to the Administrative Court against the granting of special consent. The court upheld the appeal and refused the permit for change of use. The religious organisation and the Rural Council then appealed to the Supreme Court. The court held that on appeal in such a matter the Administrative Court is authorised under s 39(1) of the Rural, Town and Country Planning Act, 1976 “to make such order as it deems fit”. It thus completely re-hears the matter and makes a fresh determination on the merits.

In the case of Associated Newspapers of Zimbabwe v The Media and Information Commission AIPP 1/03 ANZ had appealed in terms of the Access to Information and Protection of Information Act against the decision of the Media and Information Commission to reject its application for registration. The Administrative Court decided that the type of appeal it was dealing with was an appeal in the wide sense, that is, a complete re-hearing of the evidence and a fresh determination of the matter.

Whether judgment suspended on noting of appeal

The general common law rule of practice in private law relating to superior courts of inherent jurisdiction is that the operation of a judgment is suspended on the noting of an appeal, except that the court that granted the judgment can, on application, order that the judgment will not be suspended but will come into effect despite the pending appeal. The question arises as to whether this rule also applies to the decisions of administrative tribunals and officials. In other words does the noting of an appeal against the decision of a statutory body or administrative official suspend the decision pending the appeal? There are conflicting decisions on this point.

In the case of Phiri & Ors v Industrial Steel and Pipe (Pvt)Ltd 1996 (1) ZLR 45 (S) employees appealed to the Labour Relations Tribunal against the approval by the Minister of their retrenchment by their employer. The Supreme Court held that as the retrenchment regulations are silent on the effect of an appeal, the common law rule applied, that is that the noting of an appeal suspends the execution of the judgment.

In the case of PTC v Mahachi 1997 (2) ZLR 71 (H) an employee had noted an appeal to the Supreme Court against the decision by the Labour Relations Tribunal authorizing the dismissal of the employee. The court held that the common law presumption applied and the decision of the tribunal was therefore suspended by the noting of the appeal.

On the other hand, in the case of Vengesai & Ors v Zimbabwe Glass Industries 1998 (2) ZLR 593 (H) a High Court judge came to a different conclusion. This case again involved the question of whether the decision of the Minister to approve the retrenchment of employees was suspended by the noting of an appeal to the Labour Relations Tribunal. The judge ruled that the appeal did not suspend the decision. His reasoning was as follows. The common law rule of practice that an appeal automatically suspends the execution of a judgment only applies to a superior court of inherent jurisdiction. It does not apply to any other court, tribunal or authority. Such other courts, tribunals or authorities are creatures of statutes and are bound by the terms of the statutes that establish them. The noting of an appeal only suspends the decision if the enabling statute in question so provides. If it does not so provide, the person appealing is not left without a remedy as he or she may apply to the High Court for a stay or interdict.

The approach adopted in the Vengesai case was also adopted by the judge in the case of PTC v Mahachi (2) HH-183-98. Commenting on the divergence of opinion on this issue, the judge pointed out that the common law rule had the important corollary that the court giving judgment has the inherent discretion to permit execution pending appeal. Only courts of inherent jurisdiction have this discretion. Thus other courts and tribunals judgments of such courts and tribunals should not automatically be suspended. See also Chatizembwa v Circle Cement Ltd HH121-941994 and Founders Building Society v Mazuka 2000 (1) ZLR 528 (H).

Commenting obiter on this conflict in the case law in the case of UTC v Chiwedere at p 149E Gubbay CJ seemed to favour the approach in adopted in the Vengesai, Mahachi (2) and Chatizembwa cases, saying that the ratio decidendi of the judges in these cases was “highly persuasive.”

In the case of UTC (Zimbabwe) Pvt Ltd v Chigwedere 2001(1) ZLR 147 (S) the Supreme Court ruled that the noting of an appeal to the Labour Relations Tribunal in terms of s 101(7) of the Labour Relations Act against an employer’s decision to dismiss an employee in accordance with a registered code of conduct, does not have the effect of suspending the decision pending the outcome of the appeal.  The court pointed out that this case did not concern an appeal against the decision of an administrative body or official; it was an appeal against the determination of an individual employer acting through an internal management committee. This is a matter of private law.

In the case of Associated Newspapers of Zimbabwe (Pvt) Ltd v The Minister of State for Information and Publicity ANZ (Pvt) Ltd & Ors v Minister for Information & Anor 2005 (1) ZLR 222 (S) 252 the Supreme Court ruled that the Administrative Court had no power to order the execution of its judgment even though an appeal had been noted against that judgment.

As regards appeals in labour matters to the Labour Court s 97(3) of the Labour Act [Chapter 28:01] specifically provides that an appeal to the Labour Court in terms of s 97(1) “shall not have the effect of suspending the determination or decision appealed against.”